MS ANNE MARIE DOMINY v DRAKE & SCULL TECHNICAL SERVICES LTD [2001] UKEAT 0139_01_1907

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0139_01_1907

Case No Appeal No PA/0139/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS ANNE MARIE DOMINYAPPELLANT

DRAKE & SCULL TECHNICAL SERVICES LTDRESPONDENT

Before

Mr Justice Lindsay

Date 19 July 2001

[1]APPEARANCES For the Appellant MR J SYKES (Solicitor) Instructed by Messrs Philip Glah & Co Solicitors 259/260 Temple Chambers Temple Avenue London EC4Y OHP For the Respondent Miss L Chudleigh (Of Counsel) Instructed by Messrs Blake Lapthorn 1 Barnes Wallis Road Segensworth Fareham Hampshire PO15 5UA MR JUSTICE LINDSAY (PRESIDENT) I have before me the Appeal of Miss A Dominy in the matter of Dominy v Drake & Scull Technical Services Ltd . In this Appeal Miss Dominy appeals against the Registrar's Order refusing to extend time for the lodging of a Notice of Appeal. This morning Miss Dominy has been represented by Mr Sykes and Miss Chudleigh has appeared for Drake & Scull, the Respondents.

[2]On 6 and 7 June 2000 and on 13 November 2000 there was a hearing at the Employment Tribunal. The position had been that on 4 July 2000 the hearing was adjourned and re-fixed for 13 November 2000 in anticipation of a further 3 days, presumably 13, 14 and 15 November 2000. On the last day of the actual hearing, the 13 November 2000, application was made on behalf of Miss Dominy for an adjournment. It was refused. The Tribunal said:

"We were asked on 13 November 2000 to consider an application on behalf of the Applicant to postpone the resumed hearing of this case. The first application on behalf of the Applicant to postpone was made on 6 November 2000 and there were subsequently four further applications to postpone up to Friday 10 November 2000. All applications were refused. The Applicant's representative had not contacted the Respondent about the postponement until a letter which was faxed in the early hours of 13 November just after midnight and was not available to the representative until he arrived at the Tribunal."

[3]So, as I understand it, Miss Dominy did not attend the hearing on 13 November 2000 but she was then represented by a representative, Mr Endicot. On 17 November 2000 the decision of the Tribunal was sent to the parties; the copy of the decision and extended reasons is endorsed in the usual way "Decision entered in Register and copies sent to the parties on 17 November" and is signed on behalf of the Secretary of the Tribunals and the decision was as follows:

"The unanimous decision of the Tribunal is that:- (i) the Applicant's application to postpone the resumed hearing is refused; (ii) the Applicant's Originating Application is struck out on the grounds of frivolous and vexatious conduct of the proceedings; (iii) the Respondent's application for costs is refused."

[4]On 15 December 2000 the Applicant's representative, Employment Cases Direct, asked for the decision of the Employment Tribunal to be sent to them. They said:

"With reference to the dismissal of the above case on 13 November 2000 please send us the decision of the Tribunal. Yours sincerely EMPLOYMENT CASES DIRECT"

And the heading indicates that that was a second fax. The Employment Cases Direct's address was 8 Bloomsbury Square, WC1A 2LP.

[5]On 19 December 2000 a copy of the decision was sent to the Applicant's representative; that it was the second that was sent was later confirmed to the Employment Appeal Tribunal by the Employment Tribunal by letter of 21 March 2001. On 29 December 2000 the 42 days period limited for the lodging of a timely Notice of Appeal beginning with the period on which it was sent, out namely the17 November, expired. By then no notice of an appeal had been received from Miss Dominy.

[6]The 10 January 2001, say Employment Cases Direct, was the date on which they first received a copy of that decision, namely the one sent to them on 19 December 2000. On 21 January 2001 a Notice of Appeal was received at the Employment Appeal Tribunal along with an application for an extension of time. The application for that extension says:

"1 The Applicant applies for extension of time to file the attached Notice of Appeal in the exceptional circumstances of administrative error by the Regional Secretary of the Employment Tribunal whose decisions she appeals. 2 These exceptional circumstances are that the Regional Secretary failed to send her representative or herself the decision so as to permit an appeal within the time period allowed. 3 The Appellant therefore seeks extension of time as a result not of her own delay but of that of the Regional Secretary."

And a little later:

"5 The Regional Secretary caused delay to the Appellant's appeal as follows: (a) By failing to issue the decision to her representative or herself on 17 November 2000; (b) By failing to check on receiving the representative's request of 15 December 2000 that the decision had been issued on 17 November 2000; (c) By issuing the decision 31 days late on 19 December 2000; (d) By posting the decision a few days before Christmas, risking further delay and loss of time to appeal within 42 days allowed, rather than faxing it."

[7]On 12 February 2001 Drake & Scull's solicitors resisted an extension of time and, referring to the Applicant's letter of 15 December 2000, said this:

"The only other submission we wish to make on behalf of the Respondent is to refer the EAT to the letter dated 15 th December 2000 sent by the Appellant's representatives to the Employment Tribunal (and attached to her application). It asks the Tribunal to "please send us the decision of the Tribunal"

. We submit that it is significant that this letter makes no enquiry as to the status or position of proceedings, it simply asks for the decision to be sent. We submit that this confirms that the Appellant's professional advisers were aware at the time this letter was written that a decision had been promulgated by the Employment Tribunal at that date. The letter states it is the "second fax". Whilst we are not in the position to know what the subject matter of the first fax was, we submit that the fact of previous correspondence adds weight to our submission that the Appellant's representative must have been aware that a decision had been promulgated. We submit that professional advisers knowing that a decision had been promulgated should have established when that had occurred. If they had done so, they would have known the date on which the 42 day time period started running and when it expired. We submit that all professional advisers practising in this area of law should know what the time limits are and that they are of crucial importance and not to be taken lightly. We submit that it is at best surprising that the fax to the Employment Tribunal neither asked for the decision to be faxed back immediately nor gave any indication that an appeal was contemplated and of the urgency involved. Furthermore, the Appellant's representatives then appeared to do nothing to chase receipt of the decision and instead complain that it was not received until 10 January 2001."

[8]On 21 March 2001 the Employment Tribunal confirmed to the Employment Appeal Tribunal that the decision had been promulgated on 17 November 2000. In a letter to the Registrar of the Employment Appeal Tribunal, the Regional Secretary of the Tribunal said:

"(1) The decision, which was promulgated on 17 th November 2000, was issued to both parties on the same day. (2) Due to the time which has elapsed since the 17 th November 2000, the clerk responsible cannot confirm that the decision was sent to the new address of Employment Cases Direct. However, as our computer records accurately show that address has changed, I can assume that the new address was used. (3) The decision was copied to the Applicant's representative on 19 th December 2000 at their request. I can confirm that this was the second copy sent out from this office."

[9]On 25 April 2001, solicitors for Miss Dominy replaced Employment Cases Direct. On 5 June 2001 the Registrar made her Order. It said:

"And in consideration of the fact that by a request on the fifteenth of December for a copy of the Tribunal's decision, the Appellant's representatives were aware that one had been promulgated and should therefore have made proper inquiries in respect of this AND UPON the assertion of the Employment Tribunal that the decision was promulgated on the seventeenth of November two thousand by posting a copy to all parties AND UPON CONSIDERATION of Rule 20(3) of the Employment Tribunals Rules of Procedure (Schedule 1 of the Employment Tribunals (Constitution etc) Regulations 1993) and s7 of the Interpretation Act 1978 that service of a document upon a party by post is deemed good service AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND ABDELGHAFAR with special attention paid to 71C "there is no excuse, even in the case of an unrepresented for ignorance of time limits"

IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993 AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused"

[10]On 11 June 2001 a sealed copy of the Registrar's Order was sent to the Appellant's solicitors and on 19 June 2001 a Notice of Appeal was received by the Employment Appeal Tribunal against the Registrar's Order and on 10 July 2001 a skeleton argument was received from the Appellant, Miss Dominy, and it makes a number of points which I ought to briefly touch on.

(i) it says:

"the fact that neither the appellant's representative nor the appellant received the Decision from the Tribunal at the time the Tribunal purports it issued it;"

At paragraph 6(iv) it says:

"The Registrar misdirected herself in finding there were no exceptional reasons not to present the appeal in time, when the reason for the appeal not being presented in time was non-receipt in time of the Decision of the Employment Tribunal;"

Later at 6.5 they say:

"On the 13 th November 2000 a new representative instructed by Employment Cases Direct Ltd applied for postponement. The Tribunal refused the application, and on the respondent's application struck out the action. The appellant when informed of the Tribunal's oral Decision decided to appeal. 6.6 By mid-December 2000 the appellant's representative Employment Cases Direct Ltd (that is perhaps a new entity because previously the correspondence had not added the word 'Ltd') had not received a Decision from the Tribunal."

A little later:

"6.7 On or about 14 th December 2000 the appellant's representative telephoned the Regional Secretary of London South Tribunal and asked when the Decision would be sent out. The Regional Secretary told the appellant's representative that it had already sent out the Decision. The appellant's representative stated that it had not received it and checked with the appellant, as Tribunals sometimes send Decisions directly to applicants although a representative is on the record. The appellant said she had not received a Decision, or indeed any letter or telephone call from the Tribunal."

A little later in 6.8:

"The Regional Secretary said they would send a copy on receipt of a fax request. On 15 th December 2000 the appellant's representative faxed a request for the Decision of the Tribunal. 6.9 The Regional Secretary did not inform the appellant's representative on 14 th or 15 th December 2000 that the Decision had been issued on 17 th November 2000, a month before, and that therefore time for appeal would soon run out. That it could have been issued on 17 th November 2000 did not occur to the appellant's representative as Tribunal Decisions, with a target for issue of 6 weeks, are usually issued 4-10 weeks after the Decision. 6.10 No Decision was received from the Tribunal by Christmas 2000, when Employment Cases Direct Ltd closed its office. On 8 th January 2001, when the office re-opened, there was no Decision from the Tribunal. On or about 10 th January 2001 the Decision was received, with a note attached from the Regional Secretary, 'Please find decision attached as requested'. The note was dated '19.12.00'."

[12]There is no suggestion that the Employment Tribunal was asked to do other than send the decision and nowhere has it been said that the Employment Tribunal was then given reason to believe that an appeal was intended or was asked to supply the date on which the original version of the decision had first been promulgated.

[13]Finally, I think, of the passages that need to be borne in mind at this stage, 6.16 of the application:

"The assertion of the Tribunal office that it had sent out the Decision on 17 th November 2000 reflected an apparent record of it being sent out, and was not proof it had been sent out. It was only likely it had been out. Secondly, the rule that service by post being deemed service does not mean the posted Decision if posted was received."

[14]I indicated at an earlier stage in the case in argument that I am not prepared simply to accept a bold assertion as to non receipt of the Employment Tribunal documents. I take the view and mentioned it to both sides that for an informed decision in the case evidence properly- so-called is needed. What it seems to me is necessary or certainly desirable are the following. First of all, a sworn statement from Mr Endicot as to his receipt or not of the Employment Tribunal's decision and stating whether he had asked the Employment Tribunal to send the decision to him and if so at what address. He was the last representative to act for Miss Dominy; he acted in such capacity on 13 November 2000 at the hearing.

[15]Secondly, a sworn statement from some relevant person at Employment Cases Direct or Employment Cases Direct Ltd as to their office practice on receipt of documents and whether and when they received any copy of the Employment Tribunal's decision exhibiting a copy of whatever they say they received and giving their address or addresses as supplied to the Employment Tribunal and any notice of change of address.

[16]Thirdly, a sworn statement from who ever it was who on 14 December 2000 or 15 December 2000 spoke to the Regional Secretary of London South, or to someone at that office, indicating what they say was then said and exhibiting any relevant attendance note and, if there was no attendance note, explaining why there was none.

[17]Fourthly, an explanation from Employment Cases Direct or Employment Cases Direct Ltd by way of a sworn statement as to delay in the preparation and lodging of a notice of appeal between 10 January 2001 and 21 January 2001. Moreover, depending on how precisely the dates fall, if there was delay in lodging a notice of appeal against the Registrar's Order then that delay equally will need explaining on oath. Then one needs a sworn statement from Miss Dominy as to her receipt or not of the Employment Tribunal's decision, giving her address or addresses as they were in November, December 2000 and January 2001, giving an indication of whatever addresses she had given to the Employment Tribunal for service upon her and any notice of change of address and stating when she first gave instructions and to whom they were given for the lodging of a notice of appeal or when she first authorised an appeal to take place.

[18]She might also indicate when, if at all, she was approached by someone on behalf of her representative to or ask whether she had or had not by then received a copy of the decision. All these are matters which seem to me to be necessary or desirable for a fully informed decision on the point. I by no means restrict the evidence to those subjects but those would seem to be a minimum that needs to be covered if a full explanation and survey of what has actually happened is to be available to me. I will come back to Mr Sykes as to the time that would be necessary for the furnishing of this evidence but I would have thought that it should be well possible to supply both to the Employment Appeal Tribunal and to the Drake & Scull Technical Services' solicitors within 35 days. But, subject only to the time necessary for the furnishing of that evidence, and, if there is to be applications as to costs, provision for costs, that is all I need to say at the moment.